CNC e misure protettive: le prime pronunce dei Tribunali

By Alessandro Malerba

Access to protective measures

Article 6 of Legislative Decree 118/2021 which establishes the Negotiated Settlement of the Business Crisis (CNC) allows the entrepreneur in crisis who accesses the negotiated settlement to request the activation of certain protective measures with the aim of forbidding creditors from acquiring non-agreed pre-emption rights and to initiate or continue executive and precautionary actions on the assets of the company or entrepreneur.

The aim is to allow the entrepreneur to negotiate a solution with creditors, protected from the prejudicial effects deriving from their legitimate individual initiatives such as seizures of assets or current accounts, seizures of supplies and assets and others. However, to be effective, the measures depend entirely on the ruling of a court which the debtor must appeal to at the same time as the publication of the request for admission to the settlement and the acceptance of the expert. According to the ruling of the Court of Brescia of 2 December 2021, one of the first on the matter, if there has not been acceptance from the expert the competent court cannot be asked to confirm the measures since these, in reality, never actually occurred.

On the other hand, the orientation relating to the documentary deficiency is more plausible: if the publication of the request for access to the settlement was allowed even in the absence of some of the requested documents such as an updated financial situation, the six-month financial plan and the report on the industrial measures to be adopted (here for more information on the application), the judge and the expert must be allowed to consult functionally for the decision, so that the power-duty of integration would be exercisable (Court of Milan, 28 December 2021).

Not even the failure to actually start negotiations with the creditors does not prevent the confirmation - understandable in such an initial phase of the settlement: this was confirmed by the Court of Florence (sentence of 29 December 2021) which however requires the appointed expert to confirm that despite the absence of a completed plan, the reorganization appears reasonably achievable in light of the practical test, that the accounting situations are correct and reliable, and that the administration of the company is sufficiently.

The breadth of the measures

The orientation that emerges in light of the first rulings seems to be based on selectivity criteria.

In line with community indications and the Insolvency directive (2019/1023), the Court of Rome with ruling dated 3/02/2022 confirmed the principle according to which the so-called model automatic stay (which inhibits individual enforcement actions for all creditors, without distinction) cannot be applied indiscriminately but only towards those who have already taken action with individual initiatives whose continuation may compromise the continuity and resolution of the crisis or respect for the hierarchy of pre-emptions. For those who are excluded from the automatic stay, however, it is possible to establish individual executive actions during the course of the composition.

In any case, the protective measures, as argued by the Court of Milan (decision of 27 January 2022) in perfect ccontinuity with the past (Court of Cassation, sentence 25802/2015), determine the only suspension, and not the ineffectiveness, of the enforcement procedures already established, thus not allowing the release of the sums already affected by seizure, which remain unavailable to the debtor until the outcome of the settlement.

If this orientation based on selectivity were confirmed in judicial practice, the debtor would need to constantly check the monitoring procedures introduced by creditors not inhibited by the protective measures, with the aim of progressively requesting their inclusion, before the precautionary measures are consolidated, making the affected sums unavailable, with negative effects on the debtor's already weak ability to find coverage for financial needs of the company in crisis for the purposes of complying with the proposed plan.